Justices reject meal-time prayer case

Top court split over taking up VMI dispute

WASHINGTON — With only two justices voting to hear the case, the Supreme Court on Monday refused to consider restoring the traditional supper prayers at Virginia Military Institute, a public college.

The Supreme Court's action is the latest in a long line of decisions that tell school officials they must not promote religion or lead group prayers.

Last year, the normally conservative 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled that the supper prayers at VMI violated the 1st Amendment's ban on an "establishment of religion."

At VMI, cadets are required to stand at attention while a senior prays to "almighty God" or "our heavenly Father" and asks for God's blessing on the meal, the academy and the cadets. Although required to remain silent, cadets need not recite the prayer or bow their heads.

Two cadets, Neil Mellen and Paul Knick, told school officials that they objected to prayers and the requirement that they stand during the invocation. When the college's superintendent, Josiah Bunting III, turned away their complaint, they sued in 2001 with the help of the American Civil Liberties Union.

Only Justice Antonin Scalia and Chief Justice William Rehnquist voted to take up the state's appeal. It takes the votes of at least four justices to hear an appeal.

"The weighty questions raised by [Virginia's lawyers] deserve this court's attention," Scalia said, particularly since the justices have not ruled squarely on whether the ban on school-sponsored prayers extends to public colleges and universities. The chief justice said he agreed with Scalia's reasoning.

In his comments, Scalia referred to the Supreme Court's decision in 1996 to require the institute, which was then all male, to admit women. Scalia dissented from that decision.

"VMI has previously seen another of its traditions abolished by this court," Scalia said, adding, "This time, however, its cause has been ignored rather than rejected--though the consequence will be just the same."

But Justice John Paul Stevens, who was joined in his explanation by Justices Ruth Bader Ginsburg and Stephen Breyer, said the court had no jurisdiction because the two cadets who brought the lawsuit in 2001 had graduated and because Bunting had retired.

He added that "the unique features of VMI," including its "emphasis on submission and conformity," perhaps gave the case limited applicability to other cases involving government-sponsored prayers or invocations on state college campuses.

A federal judge in Lynchburg, Va., had sided with the two cadets and ruled "the primary effect (of VMI's invocations) has been to compel students to participate in a state-sponsored religious exercise."

A federal appeals court split 6-6, leaving the original ruling intact. In December, the Virginia attorney general asked the Supreme Court to take the case and rule that a ban on school-sponsored prayers in public schools does not extend to college students.

"Prayer before meals and prayer in military ceremonies are part of the fabric of our society" and need not be eliminated simply because a few students object, argued Jerry Kilgore, the Virginia attorney general.

Americans United for Separation of Church and State, a Washington, D.C.-based advocacy group, applauded Monday's announcement. "The Constitution does not allow public schools to pressure students to pray, and this action is a reaffirmation of that important principle," said Rev. Barry Lynn, the group's executive director.

However, Jay Sekulow, chief counsel for the American Center for Law and Justice, an advocacy organization promoting religious rights based in Virginia Beach, Va., said the justices sent "the wrong message" by turning away the VMI case.